Opinion
Court of Appeals No. A-11304 No. 6223
08-12-2015
ANTHONY C. ROLLINS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Susan Orlansky, Susan Orlansky LLC, and Gavin Kentch, Law Office of Gavin Kentch, LLC, Anchorage, for the Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3AN-09-7868 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge. Appearances: Susan Orlansky, Susan Orlansky LLC, and Gavin Kentch, Law Office of Gavin Kentch, LLC, Anchorage, for the Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
A jury convicted former Anchorage Police Officer Anthony C. Rollins of numerous sexual crimes involving five different women. (Rollins was acquitted of additional charges related to a sixth woman.)
On appeal, Rollins argues that the superior court erred in denying his pretrial motion to sever and contends that he was prejudiced by having the same jury decide all of the counts in a single unified trial. Rollins additionally argues that the superior court erred in allowing the State to introduce evidence that Rollins made unwelcome sexual advances towards another woman he had arrested on the same day as one of the charged sexual assaults.
For the reasons explained here, we affirm the judgment of the superior court.
Background facts and proceedings
Following an internal investigation by the Anchorage Police Department, former Anchorage Police Officer Anthony Rollins was indicted with four counts of first-degree sexual assault, six counts of second-degree sexual assault, four counts of criminal use of a computer, and six counts of official misconduct based on evidence that over an approximately three-year time span, he had unlawful sexual contact with six different women while on duty as a police officer.
AS 11.41.410(a)(1).
AS 11.41.420(a)(1).
Former AS 11.46.740(a)(1) (2010); see ch. 20, § 9, SLA 2011 (amending AS 11.46.740(a)(1)).
AS 11.56.850(a)(1).
At trial, all six women testified. The evidence demonstrated that Rollins had engaged in a variety of different non-consensual sexual acts with five of these women, including oral and vaginal sex, digital penetration, exposing his penis and masturbating in front of them, rubbing himself against them, grabbing their breasts, and grabbing their hair.
The evidence also demonstrated that there were certain commonalities to Rollins's contact with these women. For example, most of the sexual contact took place in police substations after the women had been arrested and were being processed by Rollins. In two cases, the women were handcuffed. There were unexplained time gaps in the processing tapes for some of these arrests where Rollins had turned off his recorder, and Rollins often initiated the sexual contact by first making sexualized comments about the women's body piercings. After the assaults, Rollins harassed the women by calling and texting them to such an extent that several of them changed their numbers.
Over Rollins's objection, the State was also allowed to introduce testimony from a seventh woman, E.M., who testified about an incident that occurred on the same day as one of the charged sexual assaults. E.M.'s testimony about her encounter with Rollins shared a number of similarities with the testimony of the other six women. E.M. testified that she was arrested for driving while under the influence and transported to the Spenard police substation for a breath test, and that Rollins was the officer who administered the breath test. She also testified that Rollins turned off his tape recorder during the processing and "everything about him changed; his body language, the way he talked." He used "sleazy come-on lines," stroked her hair, and indicated that she should call him. E.M. gave Rollins her telephone number for the police report, and he subsequently called her. Sometime later, Rollins followed E.M. down Tudor Road, which prompted her to file a complaint against him.
Rollins testified in his own defense at trial. He admitted that he had engaged in sexual contact with four of the women, but he asserted that the contact was consensual. He denied any sexual contact with the other two women, though he admitted calling the seventh woman (the uncharged conduct) once. Rollins also admitted that he violated police protocol by accessing personal information about four of his victims through the Alaska Public Safety Information Network (APSIN) for purposes unrelated to law enforcement.
The jury convicted Rollins of the counts related to five of the six women. It acquitted him of the counts related to the sixth woman.
This appeal followed.
Why we affirm the superior court's denial of the motion to sever
On appeal, Rollins argues that the superior court erred in failing to sever the charges involving the different women into separate trials. He asserts that he was unfairly prejudiced by having all of the charges joined into one trial.
Alaska Criminal Rule 8(a) governs the joinder of multiple charges into a single trial. In relevant part, it authorizes joinder if (1) the charges "are of the same or similar character" and the evidence as to each is admissible as to all, or (2) they "are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan." Under Criminal Rule 14, the trial court must sever counts otherwise subject to joinder if the defendant or the State will be "unfairly prejudiced" by joinder.
As noted above, Rollins moved to sever the counts against him under Criminal Rule 14. He conceded that the charged acts were of the same or similar character; he also conceded that the charged acts would be cross-admissible under Evidence Rule 404(b)(3) if he raised a defense of consent. He argued that joinder was nevertheless inappropriate because "[p]resentation of all the charges spanning several years' time in a single trial will bury the jury in an avalanche of allegations far more prejudicial than they are probative of the facts of any single allegation before the jury."
Alaska R. Evid. 404(b)(3) ("In a prosecution for a crime of sexual assault in any degree, evidence of other sexual assaults or attempted sexual assaults by the defendant against the same or another person is admissible if the defendant relies on a defense of consent.").
The trial court denied Rollins's motion to sever. It held that joinder was appropriate under Criminal Rule 8(a) both because (1) the offenses charged were of the same or similar type and (2) each offense constituted part of a common scheme or plan. The court also concluded that Rollins had not shown that he would be unfairly prejudiced by joinder and that the evidence would be cross-admissible under Evidence Rule 404(b)(1) and likely 404(b)(3).
On appeal, Rollins concedes that joinder was proper under Criminal Rule 8(a) and further concedes that the evidence on the charges was all cross-admissible. But he argues that joinder nevertheless unfairly prejudiced him in this case because the jury was inundated with evidence involving different victims and types of sexual assault.
We are unpersuaded by this argument. As the jury's verdicts demonstrate, Rollins's jury proved itself capable of parsing through the evidence and making an independent decision on each of the charges against him.
Because Rollins has failed to show that he was unfairly prejudiced by the joinder of all his charges into one trial, we conclude that the superior court did not abuse its discretion in denying Rollins's motion to sever.
Why we affirm the superior court's decision to admit E.M.'s testimony
Rollins also argues that the superior court erred in allowing the State to introduce E.M.'s testimony about Rollins's unwanted sexual overtures.
Initially the State had sought to introduce the testimony of seven witnesses who would testify to prior uncharged sexual contact by Rollins. The State later reduced its proffer to three witnesses and the superior court ultimately ruled that only one witness — E.M. — would be allowed to testify.
The court found that E.M.'s testimony was admissible under Evidence Rule 404(b)(1) for a variety of non-propensity purposes, including to prove that Rollins's charged conduct formed part of a common scheme or plan of "taking sexual advantage of vulnerable women while on duty as a police officer." In support of this ruling, the court noted a number of similarities between Rollins's conduct involving E.M. and his charged acts of sexual misconduct: Rollins's advances toward E.M. occurred at a police substation while she was handcuffed, he stroked her hair and made sexualized comments toward her, and he told her to call him and later left messages on her cell phone. The court also found that Rollins's decision to make inappropriate sexual advances toward E.M. on the same night he was later alleged to have committed one of the charged assaults was probative of Rollins's intent to commit sexual assault that night.
On appeal, Rollins points out that the court mistakenly believed that the incident with E.M. occurred before the charged sexual assault when it actually occurred after. We do not view this factual discrepancy as central to the superior court's analysis. It is clear from the court's comments that the critical reasons for allowing the State to introduce this information were the commonality of this incident to the other charged incidents and the general temporal proximity to one of the charged assaults.
Rollins also argues that the superior court applied the wrong legal test in evaluating whether the probative value of E.M.'s testimony outweighed its potential for unfair prejudice. We acknowledge that in its analysis, the trial court referred to the balancing test under Bingaman v. State, which addresses the admission of propensity evidence under Evidence Rules 404(b)(2), (3), and (4), not the admission of non-propensity evidence under Evidence Rule 404(b)(1). But a review of the court's actual analysis indicates that it was engaged in the robust balancing test required for evidence admitted under Evidence Rule 404(b)(1).
Bingaman v. State, 76 P.3d 398 (Alaska App. 2003). --------
Lastly, Rollins argues that the court erred in ruling that E.M.'s testimony was relevant to prove Rollins's "intent" on the night he committed one of the charged assaults. Rollins contends that using evidence of a defendant's intent to sexually assault one person as evidence of the defendant's intent to sexually assault another person is exactly the kind of propensity evidence that is barred under Evidence Rule 404(b). But we do not read the court's ruling as permitting the evidence to be used to show that Rollins had a propensity to commit sexual assault. To the contrary, we view the court's ruling as limiting the State to using the evidence for its permissible, non-propensity purposes. We further note that the court gave the jury the proper limiting instruction for this evidence, directly instructing the jury that it should consider E.M.'s testimony for the limited purpose of deciding whether the evidence tended to show motive, plan, or absence of mistake, and not to prove that Rollins was a person of bad character who had a propensity to commit sexual assaults.
We conclude that admission of E.M.'s testimony was not an abuse of discretion.
Conclusion
We AFFIRM the judgment of the superior court.